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Saturday, February 16, 2008

A Lesson in Constitutional Law

SENATOR HILLARY CLINTON should probably be forgiven for not remembering the course on the state Constitution that she would have had to take as an eighth grader in Illinois. But had she remembered it, she would have known that Senator Barack Obama was not ducking his responsibility in the Illinois Senate when he voted “present” on many issues.

Unlike Congress and the legislatures of most other states, each chamber of the Illinois Legislature requires a “constitutional majority” to pass a bill. The state Senate has 59 members, so it takes 30 affirmative votes. This makes a “present” vote the same as a no. If a bill receives 29 votes, but the rest of the senators vote “present,” it fails.

In Congress, in contrast, a bill can pass in either the House or the Senate as long as more people vote for it than against it. If 10 people vote in favor and nine against, and the rest either vote “present” or don’t vote at all, the bill passes. It can actually pass with just one vote, as long as no one votes no.

In the Illinois Senate, there can be strategic reasons for voting “present” rather than simply no. A member might approve the intent of legislation, but not its scope or the way it has been drafted. A “present” vote can send a signal to a bill’s sponsors that the legislator might support an amended version. Voting “present” can also be a way to exercise fiscal restraint, without opposing the subject of the bill.

I recall voting “present” on many bills when I was in the Illinois Legislature. In the 1960s, for instance, I voted “present” on the annual highway appropriations bill. Like many of my fellow senators, I thought some of the money being allocated should have gone to public transportation. Still, I didn’t want to vote no, because I did not want to stand against the basic principle of maintaining our public roads. So I voted “present.”

In Illinois, political experts say voting present is a relatively common way for lawmakers to express disapproval of a measure. It can at times help avoid running the risks of voting no, they add.

“If you are worried about your next election, the present vote gives you political cover,” said Kent D. Redfield, a professor of political studies at the University of Illinois at Springfield. “This is an option that does not exist in every state and reflects Illinois political culture.”

The vote on the juvenile-justice bill appears to be a case when Mr. Obama, who represented a racially mixed district on the South Side of Chicago, faced pressure. It also occurred about six months before he announced an ultimately unsuccessful campaign against a popular black congressman, Bobby L. Rush.

State Senator Christine Radogno, a Republican, was a co-sponsor of the bill to let children as young as 15 be prosecuted as adults if charged with committing a crime with a firearm on or near school grounds.

The measure passed both houses overwhelmingly. In explaining his present vote on the floor of the Senate, Mr. Obama said there was no proof that increasing penalties for young offenders reduced crime, though he acknowledged that the bill had fairly unanimous support.

“Voting present was a way to satisfy those two competing interests,” Ms. Radogno said in a telephone interview.

Thom Mannard, director of the Illinois Council Against Handgun Violence, said political calculation could have figured in that vote.

“If he voted a flat-out no,” Mr. Mannard said, “somebody down the road could say Obama took this vote and was soft on crime.”